A High Court Judge has queried whether the Minister of State for Special Education has "set her face against funding" Specific Learning Disability Special Classes and is operating an "inflexible policy" after finding she acted against the law in a case involving a young boy with severe dyslexia.
In a written judgement relating to Judicial Review proceedings and delivered on Tuesday, Mr Justice Anthony Barr wrote that Minister Josepha Madigan "appears to have been adopting an inflexible rule whereby she would not countenance the creation of any new SLD classes".
A young boy and his mother had brought Judicial Review proceedings against the Minister for Education, the National Council for Special Education (NCSE) and the Attorney General, as well as the board of management at a west Dublin school, following the withdrawal of the sanctioning of a special class - a Specific Learning Disability Special Class, or SLD Class - that had been granted in April last year by a Special Education Needs Organiser (SENO) on behalf of the NCSE.
That sanctioning of the class was pulled a month later, with the NCSE saying the original permission had been given in error. A new model to support pupils with special educational needs in all mainstream primary schools, as per the guidelines issued by the Department of Education and the NCSE, has been in place since September 2017.
In the judgment, it is accepted that it "is a fair and reasonable policy" and that the Minister can implement the policy by way of a circular, rather than a regulation. But Mr Justice Barr said it seemed clear that the new model did not rule out SLD classes, and that the Minister has continued to fund four SLD schools and 13 SLD classes that were already in existence when the new model was introduced.
Mr Justice Barr said:
While noting that position, it appears to be the case that the Minister has pretty firmly set her mind against the question of establishing new SLD classes or schools.
He added that the circumstances of the case "would suggest that the Minister was applying a strict policy against the funding of such SLD classes, without enquiring into whether there was in fact a necessity for the creation of such a class."
Mr Justice Barr said it was "extraordinary" that the SLD class would be sanctioned when, "apparently, the Minister had not funded any such new classes under the new scheme, and indeed, no such class had been created in the previous 10 years, since 2011".
"At the very least, this appears to the court to demonstrate a marked lack of communication between the first and second respondents", adding that there was "a wider question" over whether children who require SLD classes can be accommodated "if the Minister has set her face against funding any such new classes".
In countermanding the sanction of the SLD class without any such evaluation or information, the Minister appears to have been adopting an inflexible rule whereby she would not countenance the creation of any new SLD classes.
"The court is satisfied that adopting such a policy, is contrary to the provisions of the 2004 Act and contrary to the provisions of the new model itself."
The Judicial Review proceedings were brought on behalf of the applicants by Gareth Noble of KOD Lyons and with the court granting a declaration that the Minister acted contrary to the provisions of the 2004 Act and contrary to the provisions of the new model policy, which had been introduced by her in 2017, it will now await the SEN inspection and review progress in the matter in late July.